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Recent Developments in Aviation Law RECENT DEVELOPMENTS IN AVIATION LAW John F. Easton and Jonathan D. Butler I. Introduction .................................................................................. 301 II. Pretrial Proceedings ...................................................................... 302 A. Forum Non Conveniens ......................................................... 302 B. Personal Jurisdiction ............................................................... 303 C. Removals, Remands, and Transfers ......................................... 304 D. Preemption (Non–Warsaw Convention) ................................ 308 E. Choice of Law ......................................................................... 313 III. Product Liability ........................................................................... 315 A. General Aviation Revitalization Act of 1994 .......................... 315 B. Economic Loss Doctrine ......................................................... 318 IV. Warsaw Convention ...................................................................... 321 A. Hague Protocol Amendment to Warsaw Convention ........... 321 B. Preemption .............................................................................. 322 C. Accident/No Accident ............................................................. 323 D. Code-Sharing Liability ............................................................ 324 E. Deep Vein Thrombosis ........................................................... 324 i. introduction This survey focuses on important developments in aviation law from September 2005 to August 2006. The first part of this article examines opinions dealing with a variety of pretrial issues, including dismissal, re- moval and remand, and choice of law, particularly the significant choice of law decision in the American Airlines Flight 587 litigation. The second section analyzes product liability cases, including decisions involving the General Aviation Revitalization Act of 1994 and the economic loss rule. John F. Easton is a partner in the Houston office of Pillsbury Winthrop Shaw Pittman, LLP. Jonathan D. Butler is an associate in the San Francisco office of Pillsbury Winthrop Shaw Pittman, LLP. 301 302 Tort Trial & Insurance Practice Law Journal, Winter 2007 (42:2) The last section reviews decisions interpreting the Warsaw Convention, including several opinions that may sound the death knell for Deep Vein Thrombosis cases involving international travel. ii. pretrial proceedings A. Forum Non Conveniens King v. Cessna Aircraft Co.1 arose from the 2001 collision of a Cessna aircraft with a commercial flight taking off from Linate airport in Milan, Italy, when the Cessna crossed an active runway in dense fog. The collision killed 118 passengers and flight crew and injured four people on the ground. Cessna had chartered its flight as a demonstration for potential aircraft purchas- ers. The plaintiffs filed suit in the Southern District of Florida, alleging that Cessna was strictly liable for conducting the ultrahazardous activity of flying an aircraft in dense fog and directly liable for the negligent hiring and supervision of the chartered flight crew. All plaintiffs were European except Jack King, an American who was the first to file. Cessna moved to dismiss the case on grounds of forum non conveniens. The court initially denied the motion, then asked the parties for further briefing, and subse- quently granted the motion as to all plaintiffs except King.2 The court also stayed King’s action pending resolution by the Italian courts.3 The court noted that “an adequate forum is usually found when ‘the defendant is amenable to process in that other forum.’”4 The court ruled that Italy was an adequate forum because Cessna was amenable to process in Italy and was willing to submit to the country’s jurisdiction.5 The court then considered various private interest factors, such as (1) access to evi- dence, (2) availability of witnesses, and (3) “all other practical problems” relating to the cost and convenience of trial.6 The court noted that the evidence for Cessna’s causation defense (based on intervening factors) “can only come from Italian witnesses, such as individuals working with air traf- fic control at the Linate airport.”7 The court further noted that it would have to adjudicate separately the liability and damages aspects of each Euro pean plaintiff’s case. Although King had nearly completed discovery, the Eu ropean plaintiffs had barely begun conducting discovery. Finally, the court noted that the Italian proceedings were ongoing and the Court of 1. 405 F. Supp. 2d 1374 (S.D. Fla. 2005). 2. Id. at 1376, 1382. 3. Id. at 1381. 4. Id. at 1378 (quoting Satz v. McDonnell Douglas Corp., 244 F.3d 1279, 1283 (11th Cir. 2001)). 5. Id. 6. Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). 7. Id. Recent Developments in Aviation Law 303 Milan was “the only forum where Plaintiffs will be able to resolve all of their claims in a single proceeding.”8 The court also considered various public interest factors, including “(1) the sovereigns’ interests in deciding the dispute, (2) the administrative burdens posed by trial, and (3) the need to apply foreign law.”9 The court noted that “both the United States and Italy have strong interests in deter- ring negligent conduct.”10 Moreover, if the court were to retain jurisdic- tion, it would need to decide up to nine issues of foreign law11—a finding that invoked the rule that “the need to resolve and apply foreign law should ‘point the trial court towards dismissal.’”12 Finally, the court noted that in a tort case, “the foreign country is ordinarily the best place to litigate a dispute revolving around a foreign rule of decision.”13 B. Personal Jurisdiction It is axiomatic that a preferred defense strategy, if available, is to seek dismissal for lack of personal jurisdiction. The defendant obtained such a dismissal in Selle v. Fayetteville Aviation, Inc.,14 which arose from the March 2003 crash in Georgia of an aircraft sold by an Indiana corporation (“Eagle Creek”) to a Tennessee corporation (“Haulers”). The Tennessee resident employed by Haulers to fly the aircraft died in the crash. The pilot’s wife sued in Tennessee state court for “strict liability, negligence, and breach of warranty in the manufacture, sale, and maintenance” of the aircraft. The court granted Eagle Creek’s motion to dismiss for lack of personal jurisdiction. 15 Eagle Creek sold the aircraft to Haulers in November 2001. The sale was negotiated over the phone, and the sales contract was mailed to Haulers in Tennessee, executed, and then mailed back to Eagle Creek in Indiana. The contract specified that Indiana law governed the sale and further provided that two new engines would be installed at a later date. In February 2002, Eagle Creek’s pilot flew the aircraft to Indiana for this engine installation.16 The plaintiff alleged that installation and maintenance of a defective fuel control unit caused the accident.17 8. Id. at 1378–79. 9. Id. at 1378 (quoting Warter v. Boston Sec., S.A., 380 F. Supp. 2d 1299, 1314 (S.D. Fla. 2004)). 10. Id. 11. Id. at 1379. 12. Id. (quoting Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1519 (11th Cir. 1985)). 13. Id. at 1380. 14. No. M2005-01185-COA-R3-CV, 2006 Tenn. App. LEXIS 335 (May 22, 2006). 15. Id. at *2. 16. Id. at *2–3. 17. Id. at *8–9. 304 Tort Trial & Insurance Practice Law Journal, Winter 2007 (42:2) The plaintiff argued that personal jurisdiction arose from the previous business relationship between Eagle Creek and Haulers, which involved several prior aircraft sales. The plaintiff also argued that Eagle Creek was the service center for seven aircraft registered in Tennessee, it had sold parts to fourteen aircraft companies in Tennessee, and it advertised in Tennessee through a national publication and the Internet.18 The court found that Eagle Creek was not subject to general personal jurisdiction in Tennessee, reasoning that its contacts with Tennessee were “irregular at best,” that most of Eagle Creek’s alleged misconduct occurred in Indiana, and that the plaintiff’s cause of action as the beneficiary origi- nated in Georgia, where the crash occurred.19 The court also found no basis for specific personal jurisdiction. There was no evidence that Eagle Creek had “purposely directed its activities to Tennessee residents.” Rather, its contacts with Tennessee were “the result of Haulers’ unilateral pursuit of Eagle Creek’s services.”20 Accordingly, the contract negotiations, aircraft sale, and engine installation were “insufficient to cause Eagle Creek to rea- sonably anticipate being haled into court in Tennessee.”21 C. Removals, Remands, and Transfers BRMS, LLC v. North American Flight Services22 involved several motions, including the defendant’s motion to transfer venue. The case arose from allegedly defective and incomplete repairs and service of a Beechcraft King Air turboprop airplane. BRMS, a Connecticut corporation, owned the aircraft, and the repairs and service were performed by North American Flight Services, a Federal Aviation Administration-licensed aviation and avionics repair station in New York. BRMS filed suit in Connecticut fed- eral court, and North American moved to dismiss for improper venue and for lack of personal jurisdiction and, in the alternative, to transfer venue.23 BRMS had contacted North American in February 2005 regarding avi- onics upgrades that the Administration required by March 2005. After agreeing to terms, BRMS delivered its aircraft
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